IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 742 of 2024 Decided on: 31.07.2025 Nishu Kumari and another … Petitioners Versus Ramesh Chand … Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ___________________________________________________________________ For the petitioners : Mr. Ankush Dass Sood, Senior Advocate with M/s Ajay Sipahiya and Tarun Mehta, Advocates. For the respondents : Mr. Amar Deep Singh, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have inter alia prayed for the following reliefs:- “(i) allow the present petition and the impugned Order dated 21.11.2024 passed by the Learned Civil Judge, Jhandutta, District Bilaspur, Himachal Pradesh, in CMA No. 685 of 2023 in Civil Suit No. 62 of 2023 may kindly be set aside; (ii) allow the Petitioners' application under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint as per the proposed amendments; and” 2. The petitioners are aggrieved by the order passed by learned Court below dated 21.11.2024, in terms whereof, an 1 Whether reporters of the local papers may be allowed to see the judgment? 2 application filed by them/plaintiffs under Order VI, Rule 17 of the Code of Civil Procedure, seeking amendment of the plaint, has been dismissed by the learned Trial Court, by returning the following findings:- “4. The perusal of case file shows that when the matter was listed for arguments then the applicants/plaintiffs filed the present application for amendment of plaint. The alleged mutation is very much within the knowledge of the applicants since, 2011, but till date neither in the plaint or at the time of framing of issues or even for last eight years the applicants remained mum and now they come up with the present application which will definitely delay the proceedings. If the present application is allowed it will result into reopening of case and opportunity to file written statement shall be provided to the defendants and issue will be framed on it and then the plaintiff will claim opportunity to prove that issue. Hence, keeping in view the abovesaid reasons and discussion and facts and circumstances of the present case and the fact that it will result into opening of case again and it will cause prejudice to the respondent and also to the judicial system, the present application can be safely held to be not maintainable and is as such dismissed with costs of Rs. 500/-. Application stands disposed of. It be tagged with the main case file after doing needful.” 3. Learned Senior Counsel appearing for the petitioners 3 has submitted that the impugned order is per se perverse as learned Trial Court while dismissing the application filed by the petitioners erred in not appreciating that as the main prayer in the civil suit was for declaration to the effect that the sale deed dated 29.11.2010, was wrong, illegal and a result of fraud and also mis-representation, in the event of the plaintiff succeeding in the suit, the mutation entered thereupon, obviously had to go. It was to ensure that this formal relief is also incorporated in the plaint that the application was filed. Learned Senior Counsel also referred to the provisions of Order VII, Rule 7 of the Code of Civil Procedure and submitted that it is categorically mentioned therein that though every plaint shall specifically state the relief which the plaintiff claims, either simply or in the alternative, however, it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Learned Senior Counsel thus submitted that as it was post the registration of the sale deed that the mutation was attested, in case, learned Trial Court comes to the conclusion that the sale deed was bad in law, its natural corollary would be that the mutation has to go and this relief, learned Trial Court was otherwise empowered to grant even without the same being specifically prayed for. Learned Senior Counsel further submitted that the observations made by learned Court below in the impugned order that if the amendment is 4 allowed, it would result into opening of the case again and will cause prejudice to the respondent, are completely perverse, for the reason that post incorporation of the said relief, neither any further evidence was to be led by the plaintiffs nor was there any requirement of amending the written statement already filed because the defendant otherwise has not conceded to the reliefs prayed for in the plaint. 4. On the other hand, learned Counsel for the respondent has submitted that as the application was filed at the fag end when the matter was being listed for arguments, the filing of the application was nothing but abuse of the process of law. Learned Counsel drew the attention of the Court to the application filed under Order VI, Rule 17 of the Code of Civil Procedure and submitted that perusal thereof demonstrates that it is mentioned therein that what necessitated the filing of the application was negligence on the part of the Lawyer. He submitted that order VI, Rule 17 of the Code of Civil Procedure, cannot be used as a tool by a party to fill up the lacunae in its case. Accordingly, he submitted that as there was no perversity in the order impugned, the petition be dismissed. 5. I have heard learned Senior Counsel for the petitioners as well as learned Counsel for the respondent and also carefully gone through the impugned order as well as the averments made in 5 the application filed under Order VI, Rule 17 of the Code of Civil Procedure. 6. It is a matter of record that the suit was filed in the year 2016. It was at the stage when the matter was listed for arguments that an application under Order VI, Rule 17 of the Code of Civil Procedure, praying for amendment of the plaint has been filed. The reason mentioned therein is that when the matter was being prepared for the purpose of arguments by learned Counsel who was subsequently engaged, he discovered that due to a mistake on the part of the previous Counsel, mutation attested in furtherance of the illegal sale deed, had not been challenged. This necessitated the proposed amendment which is mentioned in para-4 of the application. 7. This Court is of the considered view that in light of the fact that it is the own case of the petitioners that the proposed amendment could not be earlier incorporated because of a mistake committed at the end of the petitioner, may be which now is being fastened on the previous Counsel engaged by the petitioner, the petitioner cannot be given benefit thereof. 8. In terms of the provisions of Order VI, Rule 17 of the Code of Civil Procedure, though an amendment prayed for in the pleadings can be allowed at any stage, but then, the party seeking 6 amendment, has to satisfy the Court, amongst other things, that the proposed amendment could not be incorporated earlier despite due diligence. 9. Herein, as the petitioners have pleaded negligence in the application itself, but natural negligence being antithesis to due diligence, it cannot be said that despite due diligence, the proposed amendments referred to in the application, could not have been incorporated by the plaintiff earlier. 10. In these circumstances, this Court though does not concur with the entire reasoning assigned by learned Trial Court while dismissing the application, but otherwise finds no reason to interfere with the impugned order, as there definitely was delay on the part of the petitioners in approaching the Court, praying for the amendment of the plaint, which has not been duly explained. Accordingly, in light of the above discussion, this petition is disposed of without interfering with the order impugned but with the observation that at the time of decision of the Civil Suit, the provisions of Order VII, Rule 7 of the Code of Civil Procedure shall be taken into consideration by the learned Trial Court. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge July 31, 2025 (narender)